Tag: 11th Circuit

Supreme Court Should Review Obamacare Case Now

I’m glad Trevor Burrus took the laboring oar in pointing out highlights from an Eleventh Circuit opinion that, as he put it, “is not only exhaustive, it is convincing.”  I’ve been swamped with editing the Cato Supreme Court Review and preparing for our Constitution Day conference, so have had little time to put words on paper (or even on screen) after my initial statement.

I did put together one op-ed, however, that ran today in Politico.  Here’s an excerpt:

By [striking down the individual mandate], the court — including, for the first time, a judge appointed by a Democratic president — reaffirmed that the Constitution places principled limits on federal power. It rejected the government’s argument for a situational limit on Congress’s regulatory authority based on the idea that health care is “unique,” and somehow different both from other products that everyone consumes (like food, clothing and shelter) and other types of insurance against unpredictable events (like death, disability and natural disasters).

The government’s position failed to sway the court because it did not suggest a constitutional interpretation of the commerce power. Indeed, factors like the inevitability and unpredictability of treatment, the requirement that hospitals treat people with emergency medical conditions and the high cost of advanced care “speak more to the complexity of the problem being regulated than the regulated decision’s relation to interstate commerce. They are not limiting principles, but limiting circumstances.”

I conclude that now that we have two thorough circuit court opinions going in opposite directions, there’s no reason to wait any further:  The government should file for, and the Supreme Court should grant, a petition for certiorari (review).  Any delay by the government would be base political strategery, an attempt to push the eventual Court decision – whatever it is – past the November 2012 presidential election.

‘The Constitution Requires Judicial Engagement, Not Judicial Abdication,’ Writes the 11th Circuit, and Then Leads by Example

On Friday, when the 11th Circuit struck down the individual mandate portion of ObamaCare, a trip to the Supreme Court became all but assured. Previously, although Supreme Court review was highly probable even if a circuit split didn’t develop, there was still an outside chance that the Court would deny review if all circuit courts upheld the law. Now, the Court is essentially obliged to take the case. This is reason enough to be happy about the decision.

As I work my way through the opinion, I become even happier. The opinion is not only exhaustive, it is convincing. If Congress oversteps the outer limits of its power, the court explains, then “the Constitution requires judicial engagement, not judicial abdication.” Thus, we are given over 200 pages of “judicial engagement”: the law is thoroughly explained, the Supreme Court precedents are summarized, and every major counter-argument is addressed. Moreover, the opinion adds nuance to certain arguments that were either not discussed in the briefs or discussed in a subtly different way. I will highlight some of those nuances below.

The opinion describes “two broad limitations on congressional power under the Commerce Clause.” The first is an “accommod[ation] of the Constitution’s federalist structure” that “preserve[s] ‘a distinction between what is truly national and what is truly local.’” The second is that courts should “not interpret the Commerce Clause in a way that would grant to Congress a general police power, ‘which the Founders denied the National Government and reposed in the States.’”

Both of these limitations are indisputable aspects of the existing case law. They are also too often ignored. By enumerating these limitations, the 11th Circuit opinion makes them even more explicit, almost turning them into factors of a legal test. And this is the right way to conceive of them. Those of us who oppose the mandate have constantly reiterated that, if this is allowed, there is nothing left that Congress may not do. Those who support the mandate have either pushed back against this characterization and argued that “health care is special” (in other words, “just this once, we swear”), or they have accepted the new scope of congressional power with a shrug, arguing that existing Supreme Court cases validate the individual mandate, even if this gives Congress unlimited power.

Friday’s opinion unequivocally asserts that such a result is unacceptable. If the current tests of congressional power under the Commerce Clause—specifically the “substantial effects” test articulated in Wickard v. Filburn—are so broad that there is no limitation other than the whims of Congress, then it is time for the Supreme Court to explain whether this constitutionally perverse result is, in fact, where we now stand. Otherwise, the 11th Circuit is obliged to uphold the original principles of the Constitution—that Congress’s powers are “few and defined”—against an unprecedented law that would undermine this founding tenet.

Having established this framework, most of the rest of the opinion concerns itself with whether the individual mandate satisfies this constraint, looking “not only to the action itself but also its implications for our constitutional structure.” And the court does not forget that “while these structural limitations are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty.”

Focusing on the overall constitutional structure, the court then downplays the usefulness of the “activity/inactivity” distinction that has been so much a part of both the nationwide discussion of ObamaCare and Cato’s briefs. “Simply put,” the court writes, “the individual mandate cannot be neatly classified under either the ‘economic activity’ or ‘noneconomic activity’ headings.” Instead, the court is more concerned with “(1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far reaching implications for our federalist structure.”

The court observes that “economic mandates such as the one contained in the Act are so unprecedented…that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality.” This fact is not just historically interesting, it is crucial to understanding the limits Congress’s powers. The power to compel economic transactions could hardly be more attractive to a Congress that already engages in numerous attempts to control and manage the marketplace. But “[e]ven in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”

Finally, in perhaps my favorite part of the opinion, the judges address the so-called “essential to a broader regulatory scheme” argument that has been pushed heavily by government. In his concurrence in Gonzalez v. Raich, Justice Scalia wrote that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” Thus, the government has argued that, even if the individual mandate regulates a nonecomomic inactivity that is wholly local in nature, Congress can assert power over those passive individuals via a broad regulation of interstate commerce.

If we keep in mind the second “first principle” that the court listed at the outset—that any ruling that imbues Congress with unlimited “police powers” is unacceptable under our Constitution—then this argument is essentially indistinguishable from the government’s other arguments. The court puts this very clearly:

We first note the truism that the mere placement of a particular regulation in a broader regulatory scheme does not, ipso facto, somehow render that regulation essential to that scheme. It would be nonsensical to suggest that, in announcing its “larger regulatory scheme” doctrine, the Supreme Court gave Congress carte blanche to enact unconstitutional regulations so long as such enactments were part of a broader, comprehensive regulatory scheme. We do not construe the Supreme Court’s “larger regulatory scheme” doctrine as a magic words test, where Congress’s statement that a regulation is “essential” thereby immunizes its enactment from constitutional inquiry. Such a reading would eviscerate the Constitution’s enumeration of powers and vest Congress with a general police power.

The court then makes a nuanced distinction, focusing its analysis on the word “essential” rather than the words “broader regulatory scheme.” The question is whether the control of the intrastate activity is “essential or appropriate to protect that commerce from burdens and obstructions,” and whether those intrastate activities “in a substantial way interfere with or obstruct the exercise of the granted power [i.e. the power to regulate commerce].” When analyzed in this way, the court rightly concludes that “an individual’s uninsured status in no way interferes with Congress’s ability regulate insurance companies.”

There are many other wonderful passages throughout this lengthy and thorough decision. The 100-page dissent, even if thoroughly wrong-headed, is also worthy of respect. If you’ve been following Cato’s involvement in ObamaCare, then I highly suggest reading full opinion, or at least the juicy parts.

Obamacare on Appeal

As advocates gear up for the first appellate argument in the ongoing Obamacare lawsuits – Tuesday in Richmond – today marks an important milestone: the filing of two eloquent briefs responding to the government’s appeal of Judge Roger Vinson’s January ruling that found the individual mandate unconstitutional and non-severable, thereby striking the entire legislation. 

These two briefs, one by 26 states (and for the first time signed by former solicitor general Paul Clement) and one by the private co-plaintiffs in that same Florida case (the National Federation of Independent Business and two individuals) present a full-throated defense of the basic principle upon which this country was founded: that the federal government is one of enumerated and limited powers whose primary goal is to preserve liberty.  They describe exhaustively why that government cannot require people to buy goods or services as a means of regulating interstate commerce and why therefore the unprecedented individual mandate goes beyond what the Constitution authorizes.  Indeed, forcing people to buy health insurance is neither a regulation of interstate commerce nor a constitutionally appropriate means of achieving such regulation. 

If the Eleventh Circuit, which will hear argument June 8 in Atlanta, takes these arguments seriously – and adheres to the truism that the Constitution provides fixed limits on federal power – then the “linchpin” of Obamacare is doomed.  Any ruling to the contrary, allowing the individual mandate to stand, would unleash an entirely novel and unbounded conception of federal power.

Cato will be filing our own brief a week from today.  Georgetown law professor and Cato senior fellow Randy Barnett will not be on it, however, because he has joined the NFIB’s legal team – an exciting development, to be sure!